The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Monday, June 23, 2008

Why didn't Obama publish anything in the law journal he edited? — [but see NOTE for important update]

"Obama kept Law Review balanced," according to the title of an article by Jeffrey Ressner and Ben Smith on the Politico website. By that, they mean that during his one-year term as president of the Harvard Law Review, Barack Obama gave final approval to the publication of articles by law professors, and shorter "notes" by student authors, that reflected a wide range of differing viewpoints.

That is tantamount to saying that he did his job acceptably well. It's mildly interesting, but not nearly as interesting as an Obama mystery that Ressner and Smith mention — and then leave completely unresolved!

[NOTE: Many weeks after I wrote this post, Smith and Ressner have published a new article entitled Exclusive: Obama's lost law review article, reporting that Obama actually did write an unsigned "case comment" for the HLR in which he analyzed an Illinois Supreme Court case which held that a fetus has no tort rights to sue its mother for money damages for injuries sustained due to the mother's alleged negligence. More details here. — Beldar, Fri Aug 22, 2008 @ 8:30pm.]

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Every law review attempts to foster its own credibility by developing and maintaining a reputation for objectivity and open-mindedness. Even though the teaching faculties at law schools like Harvard, Yale, Stanford, and Columbia are overwhelmingly liberal in their own political persuasions, and even though they tend to espouse legal philosophies that reflect their politics, their respective schools' law journals, which are actually student-edited and -run, continue to publish articles written from other and contrary points of view — and to do so with at least enough regularity as to encourage such writers to continue submit their work for review and possible publication.

In my own days as a member and then an editor of the Texas Law Review (1978-1980), I was among the few political conservatives on the staff or editorial board. Some of the fiercest, sharpest, and most principled political arguments I've ever participated in took place there. But making persuasive arguments was what counted among this crew, both when we editors were informally arguing among ourselves over whether Jimmy Carter ought to use military force to free the U.S. Embassy captives in Tehran and when we were formally discussing whether to publish a particular professor's manuscript.

As for Ressner's and Smith's other reporting: That Obama was polite; that he chatted up the law professors he worked with; that he made them feel like he was improving their writing with his editing; and that he was on the lookout for rising young talents: These are all job requirements for any law review editor, at any law review, in any given year. Perhaps Ressner and Smith think that what's merely competent is actually quite exceptional. They certainly go on to show that they're clueless about the role of law reviews in legal scholarship generally:

In Obama's time, as it is today, the Harvard Law Review was one of the most important and distinguished legal publications in the world. Founded in 1887, it is the rare self-supporting legal publication compiled and edited completely by students, typically those attending their second or third year at the prestigious school.

No, guys, that's not rare. It's universal. That's the way it is at law schools all around the United States, and that's the way it's been at least since the early 20th Century. Having its most prestigious and important professional journals controlled and edited by students is something nearly unique to the legal profession. (My blogospheric friend Prof. Stephen Bainbridge is among more than a few law professors who've publicly suggested that this system is not just irritating, but nuts. And he may be right, but it nevertheless still is the current system.)

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There is at least one respect, however, in which what Barack Obama participated in at Harvard must have been very different from what I and others had experienced at Texas some years earlier. Ressner and Smith report that Obama "beat out 18 other contenders" to become president of the Harvard Law Review. Those would have been classmates of his, all of them about to enter their third and final years of law school. And that's a remarkably large number of competitors for the top slot — more people, in fact, than we had on our entire editorial board at Texas (even though Harvard and Texas are similarly sized and comparatively very large law schools).

What Ressner and Smith describe at Harvard — and I've read other, similar descriptions of the HLR and of Obama's election as its first black president — make me believe its editorial board selection was remarkably, overtly political as compared to most other law journals. How could it be otherwise, when it apparently depended on a vote among all of one's direct (same-year) peers and competitors who together made up the journal's membership?

At Texas, by contrast, second year students applied in writing to the outgoing editorial board (which was composed of graduating third-year students) for whatever board slot or slots they sought. The outgoing board then made its selections with, as in all other things, the editor-in-chief (the job title used by most law reviews instead of "president") having the final say. At least in my year, there was remarkably little that was contentious in the process. The outgoing book review editor, for example, correctly perceived in me a kindred spirit who would be well suited to matching up newly published legal books with prominent faculty authors around the country, and suggested I apply to fill his slot. (We actively solicited book reviewers, in contrast to articles, which generally were submitted to us, unsolicited, by law professors.) Several other of my classmates who were particularly good at mentoring were likewise nudged toward applying for positions as "note editors" who'd be working with the following class' new members. Our managing editor, in turn, was encouraged to apply for that slot by the outgoing board based on her drill-sergeant effectiveness.

There was an ample basis for the outgoing editors to make these evaluations: Besides the applications, the second-year students had been doing "scut work" at the direction of the editors — including huge amounts of "cite-checking" (source verification) and galleys proof-reading — throughout the previous year. Most importantly of all, however, second-year members were required, upon penalty of being kicked off the Review, to produce, on deadline, a publishable quality "student note." At Texas and most other top 20 law journals, such student notes tend to be not much different, either in scope or length or even quality, from the articles submitted by aspiring young law professors hoping to publish to promote their tenure prospects. We'd moved away from the earlier practice of having students write shorter, more limited "case-notes" that typically focused on a single new judicial decision, and instead encouraged more ambitious writing that would genuinely add something creative and new to the legal literature.

It was quite typical at Texas (and, I think, at most other major law reviews) that each new editor-in-chief, in fact, would be the student who, as a second-year member, had produced and published the very best student note. In the class ahead of me, my own class, and the class behind me at Texas, there was a wide-spread consensus on whose notes were the best. It is inconceivable to me that any of the three of them would have been selected to be editor-in-chief if they hadn't written a publishable note at all. And indeed, the quality of their respective notes became the source of the each new editor-in-chief's credibility as first among equals, final decision-maker, and the only editor permitted to use a blue pencil for his copy-editing (which no other editor would dare erase or alter without close consultation).

In fact, there were three ways to become a member of the Texas Law
Review in the first place: Those who'd been in the top five percent of
their first-year class were automatically offered membership at the beginning of their second year. (Some who
"graded on" this way nevertheless declined membership, typically
because they weren't willing to commit to writing a publishable-quality
note or to run the risk of failing to produce one on time.) A roughly
equal number of other slots went to the winners of a grueling
research-and-writing competition for second-year students. And rarely but occasionally, a
student would earn an invitation by writing and submitting, all on his
own, a publishable-quality student note.

Occasionally someone would write a publishable quality note that didn't actually get published. Someone might spend six months, for example, researching and writing on a topic that seemed very timely and appropriate when the student had first proposed it at the beginning of his second year, when he or she was a brand new member; but then an unexpected court ruling or new statute might suddenly moot the topic, or change the field so dramatically that what had been written by the student no longer was particularly valuable. Indeed, to try to avoid just this sort of calamity, the topic approval process was itself very detailed, and it included a "preemption check" by other students to try to determine whether there were any such pending cases or statutes lurking in the works that needed to be considered.

Otherwise, though, at Texas and, I believe, most other major law reviews, the rule for members was (and I think still is): "Publish or perish, up or out." If you didn't produce a publishable-quality note on deadline, your name was stricken from the membership list on the masthead, you had no opportunity to become an editor, and — worst of all — you became ethically obliged to call back all those employers who'd extended you job offers in part based on a résumé credential that you were no longer entitled to claim.

No one wanted to make those telephone calls.

(My own student note is abstracted here, by the way; and yes, it, along with my grades and sparkling personality, was a key in my becoming the book review editor on the 1979-1980 TLR editorial board, getting my judicial clerkship with Judge Carolyn King of the Fifth Circuit, and then getting a job at Houston's Baker Botts.)

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With which background, perhaps you can better appreciate the most peculiar thing in Ressner's and Smith's article on Obama (boldface mine):

One thing Obama did not do while with the review was publish any of his own work. Campaign spokesman Ben LaBolt said Obama didn't write any articles for the Review, though his two semesters at the helm did produce a wide range of edited case analyses and unsigned "notes" from Harvard students.

How remarkable is this for Harvard? I have no first-hand information, obviously. But among the legal celebrities whom Ressner and Smith quote in their article is Susan Estrich, who they describe as "the USC School of Law professor who served as Michael Dukakis' campaign manager in 1988 — and who broke ground as the first female president of the Harvard Law Review 14 years before Obama took the reins" (emphasis mine, brackets by Ressner and Smith):

Estrich believes that Obama must have had something published that year, even if his campaign says otherwise. "They probably don't want [to] have you [reporters] going back" to examine the Review.

Oh, pish-posh. If Obama had actually authored one of the unsigned student notes that was published, he surely would admit to it — it's another objective credential, and he and his campaign certainly brag about his supposed constitutional law expertise at the drop of a hat. Given that he never published anything while an instructor at the University of Chicago Law School later, it would be his only written evidence (besides his magna cum laude degree) of genuine academic excellence in the law. Thus, Estrich's comment leads me to believe that the Harvard Law Review, too, had a "Publish or Perish" requirement — but it's one that Obama didn't meet for reasons that are entirely unclear, and that he's now "scrupulously managing his biography" to obscure.

My bologna detector tells me there's more to the story here. So which of his former co-members or -editors will be the first to squeal on him? Or is there the Rule of Omertà among them?

Comments

Earlier this year, I read a Boston Globe article that recounts how polarized and politicized the HLR was at the time. The good news for Obama is that it portrays him as a peacemaker. The bad news is that it makes HLR appear more like the drama department than aspiring legal professionals.

Dear Mr. Dyer: Many thanks for your notions, which are consistent with what else we know about BO. One thing: when Ressner & Smith write:

"Founded in 1887, it is the rare self-supporting legal publication compiled and edited completely by students, typically those attending their second or third year at the prestigious school."

I thought they were talking about the "self supporting" part, i.e. Harvard doesn't have to cough up to keep the REVIEW running.

Thanks to your description and the article DRJ linked to, I have a notion of my own: the HLR presidency has less to do with merit than with politicking. Thus, in a time when there was plenty of conflict between factions, I could see Obama as the bland one, part of no faction, who waits for a deadlock (and maybe helps it along) and comes up the middle, bypassing the deadlocked contestants. Given that the article DRJ linked to showed that Obama applied for the presidency at the last minute, seemingly as a spur of the moment thing, this makes the notion of a deadlock more plausible. How I wish Scott Turow had written 1L when Obama was attending Harvard! I don't expect we'll find out much before the election from his fellow editors. Shucks, if Estrich is far enough in the tank for Obama to suggest that Obama published stuff anonymously, implying either a) it was too awful to publish under his name or b) Obama is a modest retiring chap who didn't want to claim credit, then there's an industrial strength omerta at work here. I do admit that the image I have of President Obama, chewing on his blue pencil while saying to Richard Posner, "Oh, I guess you're stuff's good enough, Dick," about Posner's latest submission, is good for some belly laughs. I would also like to have been the proverbial fly on the wall during an Obama family discussion, when the argument "Well, I made President of the REVIEW,so we should do it my way," was advanced. Yes I would.

Mr. Koster: Law reviews pay no salaries to student members and editors. Their sponsoring law schools typically provide offices, but it's also typical for alumni associations to pay for amenities. Subscription fees pay production costs for the printing and mailing of the journals. If HLR is self-sustaining, in other words, that's only another typical thing about it. I should also mention that while student notes were signed at Texas, they apparently aren't at Harvard (or weren't, anyway, when Obama was there).

There has been a funny controversy over a note at the Harvard Law Review this year. There certainly doesn't seem to be any Rule of Omertà among members of the law review at present!

The hilarious thing is that the auther of the note saw a statue in Cambridge Common memorializing the Hunger in Ireland that led so many to emigrate, and completely missed its import. Instead the author apparently
"believed the point of the statue was to make a statement about intergenerational equality."

There's a long post on Atlas Shrugs from May that goes into this, starting from a 1990 NYT article. I'd be interested in your take on it, Beldar - here are some representative quotes:

"To begin with, the NY Times 1990 article on Obama being elected President of the Harvard Law Review casts the first troubling clues that all is not what it appears to be.

"Until the 1970's the editors were picked on the basis of grades, and the president of the Law Review was the student with the highest academic rank. Among these were Elliot L. Richardson, the former Attorney General, and Irwin Griswold, a dean of the Harvard Law School and Solicitor General under Presidents Lyndon B. Johnson and Richard M. Nixon.

That system came under attack in the 1970's and was replaced by a program in which about half the editors are chosen for their grades and the other half are chosen by fellow students after a special writing competition. The new system, disputed when it began, was meant to help insure that minority students became editors of The Law Review .....Well, it is clear the committee choosing the President of the Review did 'factor in' affirmative action. And it is just as clear they didn't factor in his grades. Nor did they cite his papers written. In fact, there was not a mention of either. Instead, the committee abandoned them altogether and went to something completely unrelated - politics. In citing Obama's qualifications, they pointed out that he had worked the political wards in Chicago before he came to Harvard. You may well ask - what does this have to do with grades or legal acumen? The answer is - nothing. And the answer gets even more troubling when one then realizes that after Obama was elected to President of the Law Review, he wrote no papers. That's totally unheard of. Writing no papers for the Law Review is like taking a class in gymnastics without even putting on your leotards to work out. The whole reason for existence of the Review is to write a paper. And yet the very President of it writes none.

(3) clerkship with a judge

This is a shocking failure of Obama's that he did not clerk with a judge after graduation. The fact that it is a shocking failure is evidenced by the embarrassed committee admitting it up front so as to beat others to it.:

"The president of the law review usually goes on to serve as a clerk for a judge on the Federal Court of Appeals for a year, and then as a clerk for an associate justice of the Supreme Court. Mr. Obama said he planned to spend two or three years in private law practice and then return to Chicago to re-enter community work, either in politics or in local organizing."

"..usually goes on to serve as a clerk". This polite sentence means ALL Harvard Law Review presidents serve for judges after graduation. Even Obama's predecessor, Mr. Yu, did that. Indeed, Yu cited his clerkship with a judge so fast you almost thought it was part of his name. "

It sounds very convincing to me, but I know nothing except what I read from law bloggers about law school expectations. What I do know is that many moons ago I saw someone musing over the oddity of Obama never publishing anything the HLR and it stuck in my mind.

Belder, to play devil's advocate, I think you are going a long distance based on an assumption that I don't think you can trust. I went to Yale and I don't believe there was ever any explicit or implicit requirement that you publish. That might in part have to do with the fact that the journal only required you to pass the blue book exam to get in (which i failed, oh well), and then the actual officers were elected.

But I do find all this fawning over his law school record a little pathetic. Every year I move forward, my law school years have become less and less important. Its what I have done with that springboard that matters. And, bluntly, Obama hasn't done very much with his.

I can't believe more than 10% of Americans are willing to vote for this unqualified hack.

A.W.: I agree with your comments regarding the diminishing importance of a law school record as one ages.

Obama is a relatively young man, though, certainly young to be running for president; his record as a legislator is short and thin; and his job descriptions other than legislator are rather vague. Moreover, he was an older-than-average law student, meaning both that his law school days aren't actually so long ago and that his actions while there can appropriately be judged by adult standards. Whole layers of his persona, from which we might otherwise hope to get to know him — his 20+ years at Trinity United Church of Christ, for example, under the close spiritual guidance of Rev. Wright — he now sheds over a weekend when it's politically expedient to do so.

A great many Americans are trying to figure this guy out. Especially for the fatherless, the child is father to the man, and I think just about anything from Obama's background is a legitimate subject of study during this campaign season.

In addition to the HLR's use of "president" instead of "editor-in-chief," there's a terminology variance suggested by several of these sources and by the masthead at the bottom of the list of issue covers the Politico published:

At Texas, all second-year students, whether they'd "written on" or "graded on," were referred to (on the masthead and otherwise) as "members." It was during their second year that they were expected to produce a publishable-quality student note. But at Texas, at least, and I think as well at many other law reviews then and perhaps now, third-year students sometimes were given a different title. At Texas, for example, someone who'd written two publishable-quality student notes (with the second note typically written during in one's third year) was given the honorary title "Associate Editor." (That title used to be far more common back when the TLR regularly published shorter "case comments," which typically took perhaps a third or half the time to write and edit.) And I have the vague impression that at some law reviews at other schools, all third-year members may have been called "editors," even though only a small handful actually did most of the substantive editing work that distinguished the members of our editorial board at the TLR. (Here's a sample masthead from the TLR during the time I was Book Review Editor; here's one from the previous year, in which current Houston mayor Bill White was the editor-in-chief.)

The Harvard Law Review masthead from Obama's second year, however, doesn't list anyone as having any titles as editors or officers. (I suspect that the listed "circulation manager," "office manager," and "editorial assistant" may be non-student full-time employees closely involved in the actual production work — permanent staff, if you will.) Just from the numbers of people who purportedly applied to be the "president" and the "editors" who voted on Obama's election, if the NYT was using the terms in the same way that the HLR did, it may be that they consider all of their students to be "editors" from the first day of their selection to the review, even as second-year students. If so, that strikes me as blurring several useful distinctions; it certainly makes matters harder for those of us who are trying to get a handle on Barack Obama.

I might not have been clear on one thing, so let me be clearer now. When I said “But I do find all this fawning over his law school record a little pathetic,” I wasn’t referring to you. I was referring to all the people who seem to be so impressed that he was President of the HLR. And of course all of his record is interesting and relevant. It will be increasingly interesting as we move into the digital age. When I started work in a university, in 1995, I was the only student to use a laptop. By the time I graduated from law school in 2002, everyone had one. Then again, my classmates in law school might have been from a richer crowd, but I still suspect that this will be a growing trend. As it was, in undergrad, most of the students I knew would take notes by hand and then type them into a computer at home. How long before all of them just skip that intermediate step? And then what happens as everything you ever write is available in electronic form? How many people would be horribly embarrassed at some of the stupid things they wrote when they were younger?

Back to Barack, I would say that Obama is probably the most unqualified candidate since Lincoln. Which goes to show you that people unqualified on paper can turn out to be great presidents. But then again, that was in the days before the New Deal. How good of a president would he have been trying to control the behemoth now?

The Lincoln-Douglas debates in 1858 effectively exposed the North/South rift in the Democratic Party. This rift meant that Douglas, the Northern Democratic Party candidate, campaigned to preserve the Union, while the Southern Democrats campaigned on a pro slavery platform. Not bad for an "unqualified candidate." An undoubtedly less qualifed candidate was Horace Greeley, the Liberal Republican and Democratic candidate from 1872. All anyone remembers him for is "Go West, young man," and it's not even his saying.

I've been trying to get a straight answer from Obama's people since February on what, if anything, Obama wrote. See my comments on Volokh:
http://volokh.com/posts/1202117776.shtml#323660
http://volokh.com/posts/1202464143.shtml#326497
http://volokh.com/posts/1202902208.shtml#326707
http://volokh.com/posts/1202906269.shtml#326729

Obama's spokesperson was quoted on Politico as saying Obama wrote nothing, but a few days ago, after reading a New Republic report that editors who served with Obama believe he DID write for the Review I went through Obama's volume (Vol. 104) of the Review to see if there were any unsigned pieces which Obama wouldn't be eager to admit he wrote. Some of it's a little light hearted, but I came up with "Obama's Dirty Dozen":
http://abovethelaw.com/2008/06/barack_obama_harvard_law_review.php#comment-623505

For example, there's a "sex is fun" piece (honestly) arguing there's a constitutional right to commit adultery, a "pro teen abortion" piece, a couple of racially controversial pieces, three pieces urging judicial activism, and a piece suggesting that smokers (Obama was one) are "psycho." I've be interested in any comments, here or there.

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